The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM DECISION AND ORDER
In this putative collective and class action*fn1 , Plaintiff Yatram Indergit asserts claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law ("NYLL"), §§ 650 et seq., on behalf of himself and all others similarly situated, for failure to pay overtime compensation. Plaintiff also asserts individual claims for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), the New York State Human Rights Law, Executive Law §§ 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("NYCHRL"), and for retaliation under the NYLL and FLSA. Plaintiff seeks, for himself and others similarly situated, monetary damages and injunctive relief.
Rite Aid Corporation and Rite Aid of New York, Inc. (collectively "Rite Aid") have moved for summary judgment on Plaintiff's claims for overtime pay under the FLSA, for retaliation under the FLSA and the NYLL, and for injunctive relief under the FLSA and the NYLL.
Defendants argue that Plaintiff's FLSA claim fails because he was an exempt employee under the FLSA. Defendants further contend that Plaintiff never made any formal complaints under the FLSA or the NYLL and that he is therefore barred from bringing retaliation claims under these statutes. Finally, Defendants argue that Plaintiff, as a former employee, may not seek injunctive relief.
For the reasons set forth below, Defendants' motion is GRANTED as to Plaintiff's FLSA and NYLL retaliation claims. To the extent that Plaintiff seeks injunctive relief for himself, that claim is likewise dismissed. Defendants' motion for partial summary judgment is otherwise DENIED.
Rite Aid hired Plaintiff Yatram Indergit as a store manager in 1979, and he went on to spend most of his professional career working at a Rite Aid store in White Plains, New York. (Amended Cmplt. ¶ 45) On November 30, 2007, Rite Aid fired Indergit. (Id.)
Indergit's Amended Complaint includes a class action claim based on alleged violations of the NYLL; a collective action claim under the FLSA; and individual claims relating to age discrimination. (Id. ¶¶ 57-77) Indergit's class action claims under the NYLL are based on Rite Aid's alleged failure to pay overtime compensation to its store managers and assistant store managers. Indergit's collective action claims pursuant to the FLSA are based on Rite Aid's failure to pay overtime compensation to its store managers.*fn2
Indergit claims that Rite Aid -- as part of a program to reduce the amount of overtime compensation paid to non-exempt employees -- has a policy of requiring store managers and assistant store managers to work overtime to perform the duties of non-exempt employees, such as cashiers and stock handlers. (Id. ¶¶ 37, 38) Indergit further alleges that Rite Aid managers and assistant managers are required "to work up to 80 hours a week and/or six or seven days a week" "to make up all the hours previously worked by non-exempt employees." (Id. ¶ 38) According to Indergit, Rite Aid does not pay its managers overtime compensation as required by the FLSA and the NYLL. (Id. ¶ 42)
Defendants served their motion for partial summary judgment on June 8, 2009. [Docket No. 71]
Under this Court's original Joint Case Management Plan and Scheduling Order, the parties were scheduled to complete depositions of fact witnesses and all fact discovery by October 9, 2009. [Docket No. 16 (Joint Case Management Plan and Scheduling Order), at ¶¶ 8, 10] The Court subsequently granted the parties' request to extend the fact discovery deadline to November 9, 2009 [Docket No. 80], and later further extended the fact discovery deadline to January 8, 2010 [Docket No. 84]. The parties then requested an additional ninety-day extension. [Docket No. 86] Discovery is currently set to close on April 8, 2010.
Defendants argue that they are entitled to summary judgment on Plaintiff's FLSA claim for unpaid overtime wages because Indergit falls within the executive exemption of the FLSA:
Plaintiff's testimony confirms that he was unquestionably in charge of the store, disciplined employees, interviewed employees, trained employees, scheduled employees, performed office work such as payroll and financial data, and managed the store's inventory. . . . Plaintiff admits that during the relevant time period, he was at all times responsible for the day-to-day supervision, development and evaluation of at least eight to sixteen employees within his Store. . . . Plaintiff further admits that, at a minimum, his recommendations regarding hiring, firing and changes in employment status of his subordinate employees were followed. . . . He also admits that he was paid a salary in excess of that required to qualify for the FLSA's executive exemption. . . .For all of these reasons, Rite Aid properly classified Plaintiff as an exempt executive, as he has no FLSA claim for overtime pay. (Def. Br. 2)
A review of the record, however, including the parties' Rule 56.1 statements, reveals that material issues of fact remain as to whether Plaintiff was properly classified as an exempt executive employee. Moreover, because Defendants filed their motion early in the discovery process, the Court does not have an adequate factual record before it to determine whether Plaintiff was properly classified.
I.SUMMARY JUDGMENT STANDARD
Summary judgment is warranted where the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). In deciding a summary judgment motion, the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995)
"Mere conclusory statements, conjecture or speculation" by the plaintiff will not defeat a summary judgment motion. Gross v. National Broad. Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). Instead, the plaintiff must offer "concrete particulars."
Bickerstaff v. Vassar Coll., 196 F.3d 435, 451-52 (2d Cir. 1999) (disregarding plaintiff's Rule 56(e) affidavit because it lacked "concrete particulars").
"The Second Circuit has held that 'summary judgment should only be granted if "after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof."'" Behzadi & Brenjian Carpet v. David & Son Oriental Antique Rugs Corp., No. 07 Civ. 7073 (BSJ), 2009 WL 773312, at *2 (S.D.N.Y., Mar. 19, 2009) (quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir.2003) (quoting Hellstrom v. United States Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000))) (alterations in original). Therefore, "[o]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery." Miller, 321 F.3d at 303-04 (quoting Hellstrom, 201 F.3d at 97) (internal quotation marks omitted).
Accordingly, "[t]he burden on the moving party is greater in cases where discovery is incomplete." Saffire Corp. v. Newkidco., LLC, 286 F. Supp. 2d 302, 306 (S.D.N.Y. 2003); see also Park Ave. Bank, N.A. v. Bankasi, No. 93 Civ. 1483, 1995 WL 739514, at *1 (S.D.N.Y. Dec. 13, 1995) ("Summary judgment is strongly disfavored prior to the parties having had an adequate opportunity for discovery.").
This is not one of the "rarest of cases" in which it is appropriate to dismiss plaintiff's claim based on information obtained at the outset of discovery.
A.The FLSA Overtime Claim
Defendants contend that "Plaintiff's own testimony conclusively establishes that he falls squarely within the executive exemption" of the FLSA, because he admitted at his deposition that he was "unquestionably in charge of the store, disciplined employees, interviewed employees, trained employees, scheduled employee hours, performed office work such as payroll and financial data, and managed the store's inventory." (Def. Br. 1)
Plaintiff argues, however, that his "job responsibilities were identical for the most part with those of nonexempt employees, because Defendant[s] reassigned those employees' responsibilities to Plaintiff and other so-called 'managers' and 'assistant managers'. . . ." (Pltf. Br. 2) Plaintiff further contends that Defendants' motion for summary judgment is premature because Defendants "filed this motion well before the close of fact discovery and after only brief ...